Indebitatus ficient, if, from the memorandum, it appear that the bill was filed after the assumpsit. time when the credit epired (h). -Special agreement. If the plaintiff declare upon a special contract, as well as upon the general count, and fail in his proof upon the special count, but yet establish a special contract, the terms of which have been performed, he will stili be entitled to recover on the general count, provided he would have been entitled to recover on that count if no special agreement had been laid in the declaration (i). If he declare upon a special agreement, and prove a special agreement which varies from that laid, and which still remains in force, the special performance or rescinding of the agreement not having raised a simple debt or duty, he cannot recover; for he cannot recover on the special count, on account of the variance; nor on the general count, since the terms of the special agreement have not been rescinded, or reduced by performance to a mere duty. In Cooke v.. Munstone (k), the plaintiff declared for not delivering thirty-five chaldrons of soil or breeze, according to a special contract. It was proved that the contract was for the delivery of thirty-five chaldrons of soil (only), and that the plaintiff had paid 21. 5s., as earnest, and that it had not been delivered on account of a dispute between the parties as to the wharf from whence the soil should be loaded; and it was held that the plaintiff could not recover on the special count, on account of the variance, soil and breeze being distinct things; nor upon the count for money had and received, since the contract had never been rescinded (1). Indebitatus Where the plaintiff proves a special agreement and work done, but not assumpsit: pursuant to such agreement, it is said that he shall recover upon the quantum effect of special contract. meruit; for otherwise he would not be able to recover at all (m). As if, on a quantum meruit for work and labour, the plaintiff should prove that he had built a house for the defendant, though the defendant should prove that there was a special agreement about the building of it, viz. that it should be built at such a time and in such a manner, and that the plaintiff had not performed the agreement, yet the plaintiff would recover on the quantum meruit, although such proof on the part of the defendant might be proper to lessen the quantum of damages (n). charged by giving an unproductive cheque, (h) Swancott v. Westgarth, 4 East, 75. (i) B. C. P. 139. Harris v. Oke, Winch. Summ. Ass. 1759. In Buller's C. P. 139, it is laid down, that if a man declare upon a special agreement, and likewise upon a quantum meruit, and upon the trial prove a special agreement, but different from what is laid, he cannot recover on either count; not on the first, because of the variance; nor on the second, because there was a special agreement; but in a subsequent part of the same paragraph it is intimated that the plaintiff ought to have been suffered to recover on the indebitatus assumpsit count, provided the terms of the special agreement had been performed. (k) 1 N. R. 351. (1) See tit. MONEY HAD AND RECEIVED, for the different cases in which a contract is to be considered as rescinded. See also Towers v. Barret, 1 T. R. 133. Weston v. Downes, Doug. 23. Power v. Wells, Cowp, 818. Giles v. Edwards, 7 T. R. 181. Hunt v. Silk, 5 East, 449. Payne v. Bacomb, Doug. 628. (m) B. N. P. 139. Mr. Keck's Case at Oxon. 1744. But in such case it should be shown that the defendant has voluntarily derived some benefit from the work, for otherwise he would be made to pay for work which he never contracted for, and against his assent. See Ellis v. Hamlin, 3 Taunt. 55. (n) It seems, however, to be clear, that the plaintiff is not entitled to recover on the quantum meruit or quantum valebant, where a specific sum or price has been agreed on. 2 Will. Saund. 122, n. 2. And as he may recover on the general indebitatus assumpsit as much as the work is worth, &c. the quantum meruit and valebant counts are unnecessary. effect of Where the plaintiff, under a special agreement, has executed the work Indebitatus improperly, since he has not done that which he engaged to do, and which is assumpsit: the consideration of the plaintiff's promise to pay, it seems to be now settled (0) special conthat the plaintiff must recover, if at all, upon the quantum meruit, and that tract. he cannot recover more than the value of the work and materials to the defendant (p). And where the plaintiff has executed his work so ill that the defendant has derived no benefit from it, or none which exceeds in value the sum which he has paid, the plaintiff is not entitled to recover at all (q), even for the labour and materials. Where a builder undertook a work of specified dimensions, and deviated from the specification, it was held that he could not recover on a quantum meruit for work and labour and materials (r). Where a special contract has been entered into for the performance of a work, according to a specification, and deviations are made by mutual consent, the plaintiff is entitled to recover according to the terms of the contract and specification, as far as they are applicable, and upon a quantum meruit as to the rest (s). A lessor contracted to pay his tenant, at a valuation, for certain erections, pursuant to a plan to be agreed upon, provided they were completed in two months; no plan was agreed upon, and the lessee proceeded, after condition broken, with the assent of the lessor; and it was held, that the lessee might recover, as for work and labour, upon an implied promise, arising out of so many of the facts as were applicable to the new agreement (t). Upon an indebitatus assumpsit for board, schooling and clothes, with a count on a quantum meruit, stating, that, in consideration that the plaintiff had taken J. W. as a scholar into an academy kept by him, and that he had left it without giving due notice, the defendant promised to pay so much as the plaintiff reasonably deserved to have, it was held that the plaintiff was entitled to recover for one quarter beyond the time when J. W. left; a quarter's notice not having been given, according to the original terms of the contract (u). The plaintiff, in this form of action, may recover in respect of any number Variance. of different claims included in the same count, provided it be applicable to them. Thus, under a count alleging that the defendant was indebted to the plaintiff in the sum of 1,000 l. for work and labour, goods sold and delivered, money had and received, &c., the plaintiff may recover in respect of any number of demands proved within the different descriptions (a). Under the same count he may recover money due from the defendant solely, and money due from him as surviving partner (y). (0) Basten v. Butter, 7 East, 479. It had before been held that the remedy of the defendant was by a cross-action, and had been so ruled by Buller, J. in Brown v. Davis, Taunton Lent Ass. 1794, where the plaintiff had built a booth for the defendant on a race-course so ill that it fell down, and the defendant had paid part of the sum agreed for. (p) But where this defence is intended to be set up, the defendant ought to give the plaintiff notice to that effect. Basten v. Butter, 17 East, 479. (q) Basten v. Butter, 7 East, 473. Ellis v. Hamlin, 3 Taunt. 52; vid. infra, WORK AND LABOUR. (r) Ellis v. Hamlin, 3 Taunt. 52. (s) Robson v. Godfrey, 1 Starkie's C. 275. Pepper v. Burland, Peake's C. 103. (t) Burn v. Miller, 4 Taunt. 745. (u) Eardley v. Price, 2 N. R. 333. And see Gandall v. Pontigny, 1 Starkie's C. 198. The African Company v. Langdon, 15 Vin. Ab. tit. Master and Servant, G. Pl. 5, Ch. Pr. 221. And Miles v. Solebay, 2 Mod. 242. (x) Webber v. Tivil, 2 Saund. 121. (y) Ib. and Richards v. Heather, 1 B. & A. 29. Money paid. Payment of In order to sustain the count for money paid, laid out and expended for the use of another, the plaintiff must prove, First. The payment of the money. Secondly. At the request of the defendant, either express or implied (z). The plaintiff must show an actual payment of money, or its equivalent, the money. the mere giving a security for the payment is not sufficient. A surety for the defendant, who had been discharged under an insolvent debtors' Act, was obliged to give a bond and warrant of attorney as a new security for the debt; and it was held that he could not hold the defendant to bail as for money paid to his use (a). So, where one of several joint makers of a bill gave the holder a bond, and then sued the rest for contribution, in an action for money paid, it was held that the action was not maintainable, no money having in fact been paid (b). And it has been held that the receipt of stock cannot be considered as the receipt of money, either upon an agreement to pay a per-centage on the receipt of money (c), or in an action for money had and received (d). (z) Vide supra, 69. Where the plaintiff, a sheriff's officer, had been obliged to pay the debt and costs on an attachment against the sheriff for not putting in bail above, and the defendant, both before and after the sheriff had been fixed, had repeatedly promised to indemnify the plaintiff, and repay him the money expended; held, that to the extent of the debt it was money paid to the defendant's use. White v. Leroux, 1 M. & M. 347. The defendant received from H., as a security for goods sold, a bill accepted without consideration by the plaintiff; H. afterwards paid for the goods, and required the bill to be delivered back, which the defendant refused to do, and afterwards indorsed it over to a third person, who sued and recovered the amount from the plaintiff; held, that the plaintiff was entitled to recover the amount from the defendant as for so much money paid for his benefit, but not for the costs of the action, which he ought not to have defended. Bleaden v. Charles, 7 Bing. 246. After an agreement by the inhabitants in vestry to prosecute a party for encroachments, a committee had been formed, who retained an attorney, and a judgment was obtained; the attorney having recovered the amount of his bill, and with costs of the action, against the plaintiff, one of the committee, it was held that he might recover contribution from the others as for money paid. Holmes v. Williamson, 6 M. & S. 158. Goods were consigned from India to London, the bill of lading expressed the freight to have been paid, the consignee indorsed the bill of lading for value, after which it was found, that, through the default of the shipper, the freight had not been paid; held, that the shipowners could not detain the goods until payment of the freight from the assignees of the bill of lading, and that the brokers of the latter, paying the freight in order to obtain the goods, after instructions from their employers not to pay the freight, it having been paid in India, as they supposed, paid it in their own wrong, and could not recover it as money paid for their principals. Howard v. Tucker, 1 B. & Ad. 712. One who has been obliged to pay a joint debt, cannot recover a proportion from the rest of the share of one jointly liable who has become insolvent. Brown v. Lee, 6 B. & C. 689. (a) Taylor v. Higgins, 3 East, 169. (d) Nightingale v. Devismes, 5 Burr. 2589. The cases of Taylor v. Higgins, and Maxwell v. Jameson, seem to over-rule that of Barclay v. Gooch, 2 Esp. C. 271; where the plaintiffs having become sureties for the defendant, and having been called upon after his bankruptcy to pay the money, gave their promissory note for the amount; and Lord Kenyon held, that as the club had consented to take the note as money in payment, it was to be so considered for the purpose of the action, and the plaintiff had a verdict, and a new trial was refused. In Israel v. Douglas, 1 H. B. 239, the defendants being indebted to Delvaleé, who was indebted to the plaintiff, Delvaleé gave an order to the plaintiff, on the defendant's requiring them to pay what was due to him to the plaintiff, and they accepted the order, but on Del. valeé's becoming bankrupt, refused to pay the amount; and the Court of Common Pleas (Wilson, J. dissentiente) held, that the defendants were to be considered as having received so much money as they owed Delvaleé to the use of the plaintiff. Lawrence, J. in the case of Taylor v. Higgins, said, that the case of Israel v. Douglas had been afterwards disapproved of upon that point, and that he had a note of the case, which differed materially from The damages to be recovered are measured by the sum which the plaintiff Payment of has actually at the express or the implied request of the defendant. Where the money. the payment has been compulsory, the plaintiff cannot recover more than he was under the necessity of paying; and therefore although bail above may recover from their principal any sum which they have fairly expended in endeavouring to take him, they cannot recover the costs which have been occasioned by unadvisedly resisting the payment of those expenses (e). Secondly. At the defendant's request.-Where there is no request, either Request. express or implied, the action cannot be maintained (ƒ), and therefore it cannot be maintained where the money has been paid against the express direction of the party for whose use it is supposed to have been paid. Where two parishes had long been united, and paid a joint sexton, and afterwards one claimed a right of electing a separate sexton, it was held that the other parish could not, after notice, recover a moiety of the sum paid as the sexton's salary, as money paid to the use of the seceding parish (g). So where the holder of stock authorized his broker to contract for the transfer of it, upon the opening of the stock which was then shut, and the broker sold without disclosing the name of his principal, and the stock rising in value, the principal refused to transfer, alleging that the broker had sold the stock at a lower rate than he was authorized to do, and the broker paid the deficiency to the purchaser; it was held that since he had paid the money without the consent of the principal, and could not be considered as a guarantee for his principal, he could not recover for money paid to the use of the principal (h). The request may be implied from the special circumstances. The action lies against a shipowner for money supplied to the captain, either in a foreign or English port, for necessary repairs, provided it be expressly borrowed for that purpose (i) and be so applied. A request is never implied when a party is compelled to pay money through his own neglect, or breach of duty (k). surety. The defendant's assent is implied (7) in all cases where the plaintiff is com- Assent pelled to pay the debt of another through his default (m); as where a surety implied; is compelled to pay money on the default of his principal. The plaintiff in such case must prove the execution of the bond, or other instrument, by which he became the surety for the defendant, and that he became so at the request of the defendant, or that he assented to it; and that he was called upon to pay the money, and gave the defendant notice to pay it. that cited. Wilson, J. although he differed (e) Fisher v. Fallows, 5 Esp. 171. (h) Child v. Morley, 8 T. R. 610. So if the vendor of stock to be transferred on a certain day make default, the vendee purchasing the amount with his own money cannot recover the price as money paid. Lightfoot v. Creed, 8 Taunt. 268. (i) Thacker v. Moates, 1 Mo. & R. 79. Robinson v. Lyall, 7 Price, 392. Rocher v. Busher, 1 Starkie's C. 27. Palmer v. Gooch, 2 Starkie's C. 428. (k) Pitcher v. Bailey, 8 East, 171. Copp v. Topham, 6 East, 392. (1) The defendant is not liable in this form of action, unless he be primarily liable or the liability be incurred at his express request. An agreement with the plaintiff to pay money to a third party is not sufficient. Spencer v. Parry, 3 Ad. & Ell. 331, Lubbock v. Tribe, 3 M. & W. 607. (m) Exally. Partridge, 8 T. R. 310; Dawson v. Linton, 5 B. & Ad. 521. The plaintiff need not declare specially. Vanderheyden v. Paiba, 8 Wils. 528. Bail may recover such sums as they have been neces Money paid by com. pulsion. Notice to the party for whom the indemnity is given is not necessary previously to defending an action on a guarantee; but if he refuse after notice to defend the action, he is estopped from saying that the plaintiff was not bound to pay the money (n). Where there are two sureties, each of whom has been obliged to pay part of the debt, separate actions should be brought (o), unless the payment has been made out of a joint fund (p). Where several are sureties for another, and one of them is compelled to pay the whole debt, he may by separate actions compel the others to contribute their proportions towards his loss (q). The defendant as principal, and the plaintiff as his surety, made a joint and several promissory note; the holder gave time to the defendant, L., a stranger, subscribing his name by way of additional security; the plaintiff having paid the money, is entitled to recover the amount as money paid; the payment was not voluntary and the subscription did not annul his original liability (r). Where one who has been bail sues another who was bail with him, he must prove the judgment as well as the execution (s). Where a verdict has been obtained against several in an action of assumpsit, and the damages have been levied upon one, he may maintain actions against the rest for money paid to their use (t), and the record will sarily and fairly obliged to expend; as in tioneer employed by the sheriff's bailiff to sell goods under a fi. fa. Farebrother v. Ansley, 1 Camp. 343. Where a person has been induced ignorantly to commit an illegal act, an express promise of indemnity is valid. Fletcher v. Harcott, Hutt. 55. Secus where the party indemnified had notice, or may from the nature of his office, be presumed to have known, that the act was illegal. Martin v. Blithman, Yelv. 197. But it seems that where one person at the request of another ignorantly commits a trespass, he is entitled to a remedy in doing that which is apparently legal. An executor who has paid legacy duties in full, and afterwards paid the legacy duty, may recover from a legatee. Foster v. Ley, 2 Bing. N. C. 269. (n) Duffield v. Scott, 3 T. R. 374. Smith v. Compton, 3 B. & Ad. 408. (0) Beard v. Boulcot, 3 B. & P. 235. (p) Osborne v. Harper, 5 East, 225; as where the two sureties jointly borrowed the money which they paid, and gave a joint note for it. (q) Cowell v. Edwards, 2 B. & P. 268. Secus, where the surety who has paid induced the co-surety to join, and has taken a bill of sale from the principal for his own security. Turner v. Davis, 2 Esp. C. 478. (r) Catton v. Simpson, 8 Ad. & Ell. 136. (8) Belldon v. Tankard, 1 Marsh, 6. (t) Merryweather v. Nixon, 8 T. R. 186. There may, however, be contribution if the plaintiff were not aware that the transactions were illegal or doubtful. Betts v. Gibbins, 2 Ad. & Ell. 57. Pearson v. Skelton, 1 M. & W. 504. |